We resume on amendment No. 1 which is being taken with amendments Nos. 22 and 25 together with amendments Nos. 1 to 4, inclusive, to amendment No. 25. These amendments were recommitted and Members can make a number of contributions as long as they are relevant and not repetitious.
Illegal Immigrants (Trafficking) Bill, 1999: Report Stage (Resumed).
Debate resumed on amendment No. 1:
In page 3, line 7, after "1996," to insert "AND THE IMMIGRATION ACT, 1999,".
–(Minister for Justice, Equality and
Law Reform).
(Mayo): We felt strongly about the additional punitive and excessive powers being given to the Garda and customs officials to arrest somebody without any notice or warrant, on the basis even of a suspicion. Deputy Howlin read correspondence he had received from the Irish Refugee Council in which it strongly objected to providing these unqualified powers. The council has hands-on involvement in this area and considerable expertise and knowledge of the sensitivities and sensibilities involved.
Since then those of us who have an interest in this area have received representations from other interest groups which have come forward with similar views. For example, Amnesty International, which is an independent body with qualified international expertise in this area, has contacted all of us and has expressed in the strongest terms its objection to the new powers of detention. It believes the new powers contravene the principles of international law. Amnesty International issued a press statement in which it stated:
Last week the Minister for Justice, Equality and Law Reform introduced amendments to the Immigration Act, 1997, that aim to strengthen the powers of Gardaí and immigration officers to detain unsuccessful asylum seekers. The proposed provisions contain no safeguards. The lack of safeguards is particularly shocking given that (a) unsuccessful seekers are not criminals [we made that point repeatedly during last week's debate. These people threw themselves at the mercy of the State, Government and people and have been rejected but they are not common criminals] and (b) detention may be imposed on the basis of a suspicion of future conduct, not on the basis of certainty.
Under the amendments, Gardaí and immigration officers may arrest without warrant and detain an unsuccessful asylum seeker who has been issued with a deportation order. The proposed provisions confer unlimited powers to detain, and directly contravene Ireland's obligations under international law.
Amnesty International calls for the appropriate safeguards to be put in place. Detention should only be imposed where it is absolutely necessary, for a minimal period, and should be subject to close judicial supervision [there is no such supervision in Ireland. An individual can be picked up following a knock on the door Gestapo-like, taken at the dead hour of night to a place of detention, kept there for several weeks and eventually deported]. Detention should never be arbitrarily imposed. The detained person should be informed of the reasons for his or her detention, in a language that he or she understands, and should be offered an opportunity to appeal the decision. At that stage currently there is no appeals process. Rejected asylum seekers should not be held with remand prisoners . . .
Deputy Howlin and I sought to obtain a clear, categorical assurance from the Minister, as Amnesty International seeks, that these unfortunate people should not be held with remand prisoners or convicted criminals. They are not criminals and many are economic migrants who have no option but to throw themselves at the mercy of the asylum application centre in Lower Mount Street, Dublin, and others because there is not a proper immigration channel in the State. We sought clarification from the Minister regarding where these people will be kept. What type of prison regime will be put in place?
Amnesty International concludes by stating:
Women with children, unaccompanied minors and other vulnerable categories of people should not be detained. Detention should never be used as a signal to deter would-be asylum-seekers as this would be contrary to the principles of international protection.
That obviously is the intention of this provision which was lumped into the Bill at this late stage. This has been the obvious intention of quite a number of the Minister's announcements. The clear message to be sent out to the international community and the Third World, in particular, is that Ireland, if it is not a no-go area for asylum seekers, should not be a first choice in making an application. As I have stated on successive occasions in the House, if the Dublin Convention, which Ireland hosted and to which it is a party, was properly operated in concert with other member states, there would not be any need for this measure or the hysteria at Government level in regard to the issue of asylum and refugees.
I welcome the Minister of State. It is a little difficult to sustain an argument on the issues when a new Minister takes the same Bill because in a way the argument has to be made afresh. The Minister of State, no doubt, has had an opportunity to read the debate so far but I hope she has come with an open mind to accept a convincing argument where she hears it and make amendments. My experience is that often Ministers of State, in particular, come into the House to take sections of Bills when the senior Minister is unavoidably absent, with instructions to concede nothing and give no quarter, no matter what case is made. This measure is extremely important and impinges on civil liberties and human rights. It should be analysed thoroughly and an open approach should be taken to arguments from any side of the House. I sincerely hope the Minister of State approaches the debate with openness. Her record attests to her fairness in previous debates of this nature.
In essence we are debating the kernel of the new sections of the legislation. I fundamentally disagree with the manner in which the Government is pursuing this measure and I want it understood whenever these proceedings are read, broadcast or revisited that it is wrong that laws are made in such a manner. The amendments were tabled one day before Report Stage following a lengthy Second Stage debate, submissions from interested parties to the Select Committee on Justice, Equality, Defence and Women's Rights and Committee Stage had been debated in full. It is wrong at such a late stage for the Government to introduce absolutely new matter, yet that is what happened. An order of the House was required to recommit these amendments on Committee Stage because they comprised new matter. That is a bad way to make any law.
It is understandable in times of emergency there might be some reasoning behind it, but this legislation is approaching its first anniversary. It was introduced as urgent legislation to deal with the issue of trafficking simpliciter and then it was discovered to be a useful vehicle to shore up the shambles in immigration and asylum policy that was identified by the discerning Minister of State at the Department of Foreign Affairs. The policy remains a shambles. We are still grafting on bits and bobs. I described the legislation on the last occasion as a bad patchwork quilt. This is the worst way to make law because we are debating the Illegal Immigrants (Trafficking) Bill, 1999, but the amendment before us amends the Immigration Bill, 1999, which was an expandable vehicle to amend both the Refugee Act and the Aliens Act, 1935. It is a measure used to amend a measure that was itself used to amend a measure. It requires consolidation and a Government that knows and sets out its policy.
Almost a year ago I asked the Taoiseach on the Order of Business what was Government policy on immigration. He responded that there was such a thing and that it would be communicated to me. Some time later I received a letter from the Minister for Justice, Equality and Law Reform saying he had been asked by the Taoiseach to forward it to me. I am still waiting. I have asked numerous times when the consolidating immigration Bill will be before the House. The most recent response from the Taoiseach was that it will be next year. That is not good enough. We cannot deal with this critical issue in this haphazard, slapdash way.
The net issues before us are of critical importance. In the short time at my disposal I have sought to amend this new raft of amendments by tabling four amendments to amendment No. 25 in the name of the Minister. For the benefit of the Minister of State I refer to the import of these amendments. I hope she will give them a fair hearing. Amendment No. 25 proposes to amend the Immigration Act, 1999, by inserting a series of new sections. The principle is set out in the proposed insertion of subsection (1A), which I seek to delete by amendment No. 1 to amendment No. 25 in my name. The purpose of the proposed new subsection (1A) is to provide that "a person the subject of a deportation order under this section may be detained in accordance with the provisions of this Act for the purpose of ensuring his or her deportation from the State". A power is to be given to the Garda Síochána and to immigration officers acting in the name of the State to detain anybody the subject of a deportation order. The forming of a view that the person will not comply with the terms of the deportation order is sufficient to put somebody into custody.
We cherish liberty probably above all else. The statistics of those imprisoned in the country over the last number of years indicate that, thankfully, we do not have a general policy of imprisoning large numbers of people. Normally we do that as a last resort, although this gun-ho Administration of zero tolerance seeks to present a huge development in the number of prison places as a glorious achievement rather than a development that is far from welcome. With that background and understanding we should encroach on people's liberty, whether they are citizens or not, with the greatest of care, to give a blanket authority to serve a deportation notice and put somebody into custody at the same time tramples too far. I hope the Minister of State will reflect on that. I also hope she will not read out verbatim every paper she is handed and that she will listen to an argument that says this is an unnecessary power which should not be granted.
My amendment No. 2 to amendment No. 25 seeks to insert a time limit for the new power to detain if there is to be a detention. The Minister indicated that the maximum aggregate time of eight weeks, which is already enshrined in the Immigration Act, would apply to this provision. I do not know your views on this, Sir, but I would have a very fearful regard for the prospect of being imprisoned, detained or incarcerated, yet that is the prospect facing any unsuccessful asylum seeker. As Deputy Jim Higgins rightly said, these are not criminals. They could be women and children. They have committed no criminal act. They have been determined not to qualify for asylum in this country as provided for by the law. However, the Minister wishes to ensure that people who fall into that category – women, children and men – can be detained for up to eight weeks.
Last week I asked where are these people to be detained. The Minister could not give me a direct answer. I hope there has been some reflection in the Department and the Minister of State can answer me now. It is proposed to give these extra powers, so the matter must have been thought out. Are the people to be detained in local Garda stations, in the national remand prison which, after the catalogue of errors involved in its building and fitting out, is finally open, although I am not sure if it is functioning to its optimum? Will it be somewhere else, for example, a disused Army barracks? Where are these men, women and children to be detained until they are forcibly ejected from the State? We must have a response to that question before this section is concluded. It is not good enough to say that the Minister has not thought it out, that there might be various options open or that it will be thought out in due course. If the Minister is seeking these powers he must know how they are to be implemented. The House has a right to know before the matter is tested by a vote.
Amendment No. 3 in my name to amendment No. 25 seeks to delete some new parts of amendment No. 25. These include the powers given in the section to the Garda to add new conditions that are required to be implemented by the potential deportee. Amendment No. 25 will give a power of arrest if a garda has reasonable cause to suspect that the person he wants to deport intends to leave the State and enter another state without lawful authority. If a non-national arrives in my constituency – as many hundreds are doing on the Rosslare boat – applies for asylum but has his application turned down after due process and seeks to leave the country, he would be arrested under the Minister's proposals.
Perhaps the Minister is taking his obligations under the common travel area very seriously. Perhaps he would do the same in the context of the French boat, which does not deal with the common travel area. From the best information I have from the most authoritative sources – asylum seekers themselves – the French are anything but thorough in their policing of their side of the border, that is, the embarkation ports in France.
I would welcome the Minister's response to my amendments to amendment No. 25. I do not wish to rehearse all my arguments, nor the views of the Irish Refugee Council, nor our obligations under international law or the European Convention of Human Rights. However, I hope the Minister of State paid attention to the arguments made on the last occasion. This is bad law and parachuting in a serious amendment in terms of its impact at the last moment is an extremely bad way to make law.
The whole process of the making of law within the Department of Justice, Equality and Law Reform in this area is fundamentally flawed because there is no comprehensive, well thought out policy that can be presented even in a non-legal form as a policy statement in a White Paper that sets out what the Department intends to put in place in terms of legislation. It is being made up as we go along. Flotels float one week and sink the next. Hotels are bought with great alacrity and this causes huge frustration because of a lack of proper consultation in many instances in preparing communities to take on the responsibility involved. Promises are made in relation to education and preparing society for the multi-cultural changes that are happening, but a derisory sum of money has been spent under the true colours initiative.
There is no coherent policy and there is much bluster from a Minister from whom we are used to hearing bluster. I will have an opportunity during the Adjournment debate later to discuss matters on the criminal side where the Minister for zero tolerance is now presiding over an unprecedented wave of serious crime. He needs to get his act together, but the seeds he is sowing in this area will have implications for a generation, if not more. We can redress his failures with regard to criminal law when the Government changes but we will have great difficulty putting right his failures in this area of policy. For these reasons, I hope the Minister will think again. There is a different Minister present today and I am guardedly optimistic that a refreshing, new view will be displayed when she responds.
(Dublin West): One hopes the Minister of State will have an open mind with regard to the arguments made last week and that will be made today. Hope springs eternal but, unfortunately, judging by the track record of the Government to date on the issue of asylum seekers, we cannot be too hopeful. However, the Minister of State must answer a number of the crucial arguments that have been made in relation to the Bill. Undoubtedly, the legislation and the amendments proposed by the Minister seriously prejudice the rights of people seeking asylum in Ireland. It is also an extremely dishonest way to approach the question of dealing with asylum seekers.
A Bill which was introduced to supposedly deal with gangsters who traffic in humans is one thing but to try to cobble onto it and insert into it severe and draconian measures, aimed at the victims of those traffickers, can only be interpreted as seriously prejudicing the rights of innocent and vulnerable people who seek asylum in Ireland. The reason the Government is taking this particular line of inserting these measures into the Illegal Immigrants (Trafficking) Bill instead of making amendments to the Refugee Act will be outlined more clearly when we deal with the attack on the right to judicial review involved in amendments to the Bill.
The powers given to the Garda to detain on a whim people who have orders against them cannot be described as anything other than draconian. It is repugnant to any concept of human rights and democracy. Aside from this extra draconian legislation, there are already examples of innocent people who have been treated disgracefully in that way. For example, the Costinas family from west Dublin were taken without warning in a dawn raid and incarcerated in the Bridewell in an attempt to deport them. The family had been living in Ireland for five years and the children were in local schools, sitting examinations. They were integrated into the community.
The Minister is not satisfied with the powers he has already. He now wants to give the Garda the right to detain, on the slightest whim and without any warning, people who may be in the process of fighting an order for deportation against them. One can only guess what this will mean in psychological terms for people who are innocent of any crime. For example, any time a member of a family living in Ireland goes to the local Garda station to respond to a request under the legislation, if it is passed, one can imagine that the family will be on tenterhooks, wondering if their loved one will return or if he or she will be detained on the spot on the whim of a garda because there is a suspicion that the person may be in breach of one of the many conditions laid down.
Another issue which arises as a result of the new powers that will be given to the Garda is the dealings of the Minister with governments in countries from which asylum seekers come. The Minister of State must tell the House, before there is a division, what dealings the Government has had with the Nigerian Government in particular in regard to nationals from Nigeria who are seeking refuge in Ireland. The Minister took exception when I suggested that perhaps police from Nigeria would be stationed in Ireland in the same way as officers from Romania will come to this country. The Minister obviously took excep tion because Nigeria, as will be clearly exposed, has endemic corruption at many levels of its bureaucracy in terms of its Government, police and army.
It would be intolerable if police from that jurisdiction were brought to Ireland to deal with people who are seeking to escape from the heavy handed tactics in many cases of that police force. If police from Nigeria are not to be brought to Ireland, what arrangements is the Government proposing to put in place with the Nigerian Government with regard to the attempted removal of people from Nigeria who are seeking asylum or refuge in Ireland? In what level and precise forms of collusion will the Government be involved with the discredited government in Nigeria?
The Minister announced that he intends to set up a special unit of the Garda, involving 37 members of the force to, in effect, chase down people whose asylum applications have been turned down in order to deport them. Does this mean in practice that the duty of a special unit of the Garda will be to comb every location where people whose asylum applications have been refused might be likely to be found? Does this mean that areas the immigrant community frequent, such as cafés, restaurants, etc., homes and workplaces are liable to be subjected to raids? Is that the road the Government is taking? That will be intolerable to the vast majority of people. I do not buy what appears occasionally in the media that this is a racist country, etc. The majority of our people will be appalled and repelled by this.
The Minister corrected me the last day on the number of asylum seekers and revised it downwards from a figure I had been using. He said there are only 12,000 asylum seekers which is the same as the number of heroin addicts. Instead of the gardaí being sent to chase the gangsters who use heroin to destroy communities and thousands of young people, the Minister intends to send an entire unit to chase people whose only crime is to want a better life and who are prepared to work to make a contribution to this country and whose services and labour are being sought by many enterprises and employers. It is intolerable. To attempt to do that under the guise of this Bill is dishonest in the extreme and is seriously prejudicial to the rights of people who have not committed a crime, who are innocent and are seeking refuge in this country. In view of the arguments made, I hope the Government will change its tack at this late stage.
I record my opposition to amendment No. 25 in the name of the Minister and to the way this legislation has been handled. Amendments to the Immigration Act, 1999, were brought in at the last minute and grafted on to this Bill in violation of fair procedure. Even those Deputies and parties whose resources are greater than mine had difficulty coping with them.
During last week's debate the Minister challenged another Deputy to enumerate the rights of unsuccessful asylum seekers. I do not know what was behind that question but I know the answer – they have human rights. The commentary of the Minister and others shows a harsh and dismissive attitude to unsuccessful applicants, which is dangerous. There is a false suggestion that unsuccessful applicants are criminals. The Minister and others have repeatedly referred to unsuccessful applicants or to those not entitled to asylum under present rules as "abusing the asylum system". This is also a dangerous fallacy. If a person is entitled to apply, how can they be justly accused of abusing the system? Such descriptions of people who come to this country do nothing to inform the ignorant and the prejudiced. On the contrary, they feed prejudice.
The Minister, through his amendments, is scrupulous in ensuring the deportation process is as swift as possible. There is a need for powers of deportation. However, the Irish Refugee Council has stated that the Minister's proposed changes to the Immigration Act, 1999, represent "a stringent tightening of the rights of unsuccessful asylum seekers to access legal remedies in the Irish courts". When I place these Government amendments in the context of the other legislation introduced by the Minister, I can only repeat what I said on Second Stage in December. Instead of coherent policy and practice on the separate but closely related issues of asylum and immigration, we have a patchwork of reactive legislation.
It is scandalous that the Government has welcomed police from the repressive regime in Nigeria to become involved in the asylum process. This turns the notion of asylum on its head. It is like inviting the Gestapo to assist in identifying Jews or the British army to identify republicans. Yet in this context we are asked to further tighten the deportation procedure. I cannot support that.
I reject the Government's approach as embodied in amendment No. 25 and call again for fair asylum procedure, for the right to work and study for asylum seekers and for proper immigration legislation which will allow economic migrants, in numbers to be determined, to work in our country and to help meet the labour needs of our economy.
Deputy Jim Higgins stated that Amnesty International claimed that the Minister's proposals on detention under the deportation process are not compatible with international human rights law. The Minister pointed out that Article 5.1.f of the European Convention on Human Rights specifically contemplates the detention of those in relation to whom deportation is in process. There are already in section 5 of the Immigration Act specific provisions relating to the non-detention of minors and the power of the courts to release a person where the validity of a deportation order is challenged. The Minister has developed his proposals in close consultation with the Attorney General's office. That office has advised that these proposals are fully in line with our international obligations and do not offend any principles of international law.
Deputy Jim Higgins also claimed there is no normal immigration channel for those seeking to make their living in the State. That is patently untrue because it is obvious that a number of Indian, Pakistani, Chinese, Malaysian, American, Canadians and other non-nationals have been living, working and running businesses here for many years. He also claimed that because of that theory people are forced to apply for asylum. No one is being forced to make false claims that they have been prosecuted in their own country. Anyone who makes such false claims is not only not deserving of the protection of this State but is deliberately and deceitfully, for his or her own selfish interests, damaging the position of those in need of the protection of the State. However, they cannot get it because of the number of claims which must be dealt with.
The powers of arrest and detention in the amendment are not unqualified nor are they without notice. They cannot be exercised except where the garda or the immigration officer with reasonable cause suspects that the deportee, who no longer has a right to be in the State, is in one of the categories specified at paragraphs (a) to (d) of the proposed section 5(1), the appeals process has already been undergone and they have failed.
As regards amendment No. 4 in the name of Deputy Howlin, the State owes it to its fellow member states to ensure that where it has determined that a person should be returned to his or her own country of origin, where it is a failed asylum seeker or a convicted drug dealer who is being deported, the deportee should not be allowed to abuse the hospitality of yet another member state. That is why the Deputy's amendment is opposed. Deputy Howlin asked if he would be arrested while getting back on the boat. The answer is yes. Otherwise he would go back to England or France and return on the next boat. We would be presiding over a merry-go-round of illegal immigration.
We have a merry-go-round already. I invite the Minister of State to Rosslare to look at it.
That is why the person would be arrested going back on the boat.
If a few applications were processed—
We cannot have it both ways. We cannot complain during Question Time that the figures are very high and that not enough is being done and then complain that the measures we are introducing are too tough. With regard to people returning on the boat and being arrested, they will be sent back to Nigeria, Romania or wherever they came from and will not be allowed get on the merry-go-round.
It will take them longer to get back.
They will be arrested and sent back. I know the Deputy is concerned about that but he should not be as it is right to do that.
Deputies Howlin and Higgins were concerned about where people would be detained and so on. As is clear from the Act and the amendment, detention is for the purpose of ensuring the deportation of the person from the State. It is not the intention that they will lie in prison for weeks or months but, for the most part, for no longer than it takes to provide for their transport out of the State. In some cases it will be only for a few hours while transport is being arranged. In such cases this can be quite properly carried out by holding the person in a Garda station. In other longer term cases, people may have to be detained in prison or other places of detention but, in the majority of cases, if it is a question of arranging the next boat from Rosslare or flight from Dublin that should not take longer than a few hours and there should not be any need to send a person on from the Garda station to a place of detention.
Many of the points raised today were also raised with the Minister who replied to them. I hope those points of clarification deal with Deputy Higgins' concern on the international front and in regard to detention.
(Dublin West): The Minister of State did not mention Nigeria.
I regret the Minister did not give a more comprehensive response to the arguments. It is obvious that the attitude is one of continuing on from where we left off on the last occasion, not an inch. We have progressed somewhat in that the Minister of State has admitted that prison is a possible place of detention. She referred to the non-detention of minors in the immigration Act. Is it the intention to separate children from their families? If people are detained in a Garda station or a prison are the adults to be held in custody and the children put in the care of the health board? How is it to be dealt with? The argument put forward by the Minister of State that false claims add to the burden of genuine asylum seekers having their rights vindicated is analogous to saying that it is the fault of the sick that there are long waiting lists for treatment, that if there were fewer people seeking treatment those who were most meritorious would be prioritised. It is a false claim and one that does not stand up.
I have experience of talking to a great number of asylum seekers because of the position in my constituency. I do not know if that is shared by the Minister of State. No immigrant is here because of the craic or because it is exciting or for the hell of it. Nobody uproots themselves, and in some cases their children, from their homeland, in many instances travelling across more than one continent stowed away in vehicles, in some instances sealed in, in dangerous conditions and enduring sea-crossings without a very real reason. If at the end of the day that reason does not measure up to the legal criteria laid down by this Administration, it does not mean the people are criminals or clogging up the system and somehow meritorious of scorn or condemnation. I reject that view that underscores much of the Minister's argument.
I am not sure if there is much point in labouring this issue any further as we had a long argument about it. I hoped the arrival of the Minister of State might have meant a change in attitude. Perhaps we should now let the House decide the matter.
On a procedural point, we are dealing with an amendment to the Long Title. Is the consequence of the defeat of the Title that amendment No. 25 cannot be made?
It could.
I am asking because I presume the content of the Bill must be confined to the Title.
Acting Chairman:
Amendment No. 25 is a substantive one.
If amendment No. 1 were defeated what would the consequence of that be to the broadening of the scope of the Bill envisaged in amendment No. 25? I apologise for raising this procedural point without notice to the Chair.
Acting Chairman:
Amendment No. 25 stands.
Regardless of the Title?
Acting Chairman:
If amendment No. 1 is put—
If amendment No. 1 is defeated and the Short Title is unamended, is it still possible to broaden the scope of the Bill notwithstanding that it is not encompassed in the Long Title?
Acting Chairman:
Amendment No. 1 is consequential on amendment No. 25. If amendment No. 1 is defeated, amendment No. 25 still stands until we discuss that again.
Will amendment No. 1 be put first?
Acting Chairman:
Yes.
(Dublin West): The Minister did not respond to an important point I raised. If the Government brings in legislation to fast-track out of the country people to whom it has not given refuge, it will be responsibile for what happens to them. Deputy O'Malley stated here a year or so ago that he had no doubt that people who sought asylum at Shannon Airport and were bundled back onto airplanes probably met their death in the country from which they were trying to flee. I want the Minister of State to say what responsibility this Government will take for the safety of people whom her Government will deport to countries many of which do not respect human rights and where the safety, security and freedom of those people will be at risk. If the Minister of State is asking the Dáil to give her greater powers to enable her to send people back to such countries she must state that. What is the nature of the agreement either entered into or being sought by this Government with the Government of Nigeria? We know about Romania. With what other Governments in Eastern Europe, Africa or wherever is the Government seeking to enter into agreements regarding the deportation of nationals from those countries? The Minister of State must give that information. It will be an important factor in helping Deputies to decide how to vote on this matter.
(Mayo): The Minister of State said I queried the legality of detention. Deputy Howlin and I have both accepted that in certain instances, deportation has to be an option. Amnesty International stated, “Detention should only be imposed where it is absolutely necessary, for a minimal period, and should be subject to close judicial supervision.”. That is what we are saying. We agree wholeheartedly with the view of Amnesty International. This is where doubts arise – how will detention be operated?
If the Minister for Justice, Equality and Law Reform is right in his assertion that 90% of asylum seekers are bogus, and if the figure is 12,000, we are talking about mass deportations. If procedures are speeded up we are on the brink of mass deportations, with between 10,000 and 12,000 people to be deported.
It is also obvious that it is the intention of the Government to deport people within the shortest period possible. If the clear intention of the Government is to deport anyone who is not entitled to refugee status at the earliest opportunity, mass detention will be required. Mass deportation will mean keeping people in State custody of some form until such time as they are deported, for the period within which the deportation order is issued. We are entitled to a clear answer to this question. What kind of provision has been put in place?
The Government did not walk into this blindly, we are talking about deporting 10,000 people. The clear intention is that the vast majority of these people will be detained until such time as the deportation orders can be effected and executed. What kind of accommodation will there be? Are we talking about accommodation in secure prisons such as Mountjoy, Limerick, Cork or Portlaoise? Are we talking about Cloverhill or Wheatfield? Are we talking about accommodation in more open regimes such as Castlerea, which is still secure but has a different ethos? Are we talking about open accommodation such as Shelton Abbey? I presume not, because there will be a fear that these people will escape from custody and again seek to dishonour the terms of their deportation order.
These are serious questions because, if the Minister is serious about the Bill, the intention is to deport and detain until deportation can take place. Will we detain these people in Garda stations? That would not be very practical.
Doing this might seem popular now, but public opinion will swing in the opposite direction when people are being dragged across the tarmac and forcibly deported. Public opinion has not been properly tested on this issue – we are listening to the vocal minority. As soon as this happens, there will be a public outcry because the vast majority of people will not tolerate it.
If it is not practical to deport people, there is no point in providing for it in legislation. The practical improvements allow for realistic deportation.
This was supposed to be sorted out by the perfect legislation the Government introduced last year.
On Question Time last week we talked about the huge numbers coming into the State.
The Government's great Bill was meant to deal with that.
The situation changes all the time. As the debate goes on I get the impression that we are becoming like the refugees – we are on a merry-go-round. We debated this last week and all of the questions were answered.
It is called Parliament.
I answered a question a few moments ago and now I am being asked to answer it again. The Minister, Deputy O'Donoghue, answered it last week. I will again say clearly to Deputy Jim Higgins that people will be detained in Garda stations. In many cases it will be for no more than a few hours while—
The plane for Nigeria is readied.
—the ticket out of Rosslare is being prepared.
It will not be possible to send people out of Rosslare to Nigeria or Romania.
The Deputy should be careful he does not grossly exaggerate during the debate. When we start talking about mass detentions and mass deportations, there is a feeling that the Opposition is exaggerating the situation.
(Dublin West): The Minister of State herself said that 90% of asylum applications were not well founded.
I did not say that. You can now withdraw that remark. I did not say that.
(Dublin West): The Minister of State said that 90% of applications were unfounded.
Acting Chairman:
The Deputy is out of order and the Minister should address her remarks through the Chair.
The Deputy will have to withdraw that remark because I did not say that in this Dáil.
(Dublin West): We will find chapter and verse of what she said.
The Deputy can do that.
(Dublin West): The Minister of State said—
Acting Chairman:
The Minister of State is on her feet, it is her response, and the Deputy has had ample opportunity to speak.
(Dublin West): The Minister of State said that international experience will show that 90% of applications are not well founded. That means 10,000 deportations.
Acting Chairman:
The Deputy will have ample opportunity to clarify matters at a later stage.
Deputy Joe Higgins must withdraw such remarks because it is that kind of exaggeration that has us where we are in this debate. People talk about refugees being on a merry-go-round; Members opposite are on a merry-go-round and are not being at all realistic when they carry on like that.
(Dublin West): Can I make an interjection, as is provided for in Standing Orders? Did not the Minister of State say in this Dáil—
Acting Chairman:
The Deputy will have an opportunity at a later stage to seek clarification. The Minister of State should address her remarks to the matters being raised in the debate.
Instead of turning this debate into Question Time, the Deputy should be man enough to withdraw the remark he made and sort himself out in terms of where he got his information.
Deputy Howlin made an analogy that people were making the situation worse by making false claims and compared that to the situation in casu alty departments. He has drawn the wrong analogy; the correct analogy would be if all of the people in the State who were not sick joined the queues in casualty.
So people go to casualty for fun? The Minister of State has lost it.
That is the genuine analogy with the Deputy's point. His point is daft. He said the refugee situation was comparable to the situation in casualty departments.
I did not mention casualty departments, I mentioned waiting lists.
Acting Chairman:
Will the Deputy control himself until the Minister has had an opportunity to respond?
With regard to the waiting list analogy, or whatever analogy Deputy Howlin made, the point is still the same. We are talking about people seeking asylum who are not genuine asylum seekers. The analogy is with people who are not genuinely sick joining the waiting lists. The Deputy will have to check what he said. He is becoming like Deputy Joe Higgins.
We are all wrong except the Minister of State, God love her.
That is the problem, this has been debated ad infinitum, the same questions are being asked again and the Deputies are on a merry-go-round. That is what is wrong, they cannot remember what they said.
The same goes for the points made about Nigeria, Poland and the re-admission agreements. All of these points were answered by the Minister for Justice, Equality and Law Reform. Perhaps the Deputies are getting us mixed up but all of the questions were answered last week. I will try to be helpful by referring them to section 5(1) of the Refugee Act, 1996 which states:
A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
That might be of assistance in allaying the concerns of Deputy Joe Higgins.
With regard to Deputy Howlin's concerns about children, I refer him to section 5(4)(c) of the Immigration Act, 1999, which states:
Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the health board for the area in which the person is being detained of the detention and of the circumstances thereof.
The Minister of State's Department is intent on separating families. That is wonderful.
I am doing my best to try to answer the questions which have been raised and which were answered previously. However, we have reached the stage where Deputies are raising points which have already been well aired during the debate. We have debated amendment No. 1 for a total of six hours and we have reached the point where the questions raised by Members have all been answered.
I do not intend to delay proceedings much longer. However, it was important that the Minister of State answered my question.
Under the Bill, people who are detained will be separated from their families. Children will be taken into care because their parents will be placed in custody, either in prison or in a Garda station, as determined by the Minister.
Not under this legislation. They will be detained under the Immigration Act.
Yes, but the Bill amends that legislation. I understand that the Minister of State is experiencing difficulty in keeping abreast of the debate. Amendment No. 25, although it is being tabled in respect of this Bill, is designed to amend the Immigration Act, 1999, and it is that Act we are discussing in respect of this group of amendments. The Immigration Act is bad legislation and the Government dealt with the debate on it in the same way as it is dealing with this debate. I refer here to the introduction of late amend ments. I thought the Government would have learned that this is a bad way to make law.
The amendments under discussion will, if accepted, cause difficulties for the Garda Síochána. They will hamper the administration of the system and there will be a public outcry when they are implemented. The Minister of State appears to be confused. In the first instance she informed me that a person who is the subject of a deportation order and who wants to board a boat leaving Rosslare will be arrested. However, she then stated that they would only be detained for a matter of hours because they would be put aboard the next boat leaving Rosslare. Vessels leaving Rosslare only sail to EU countries, they do not sail to Romania, Nigeria, Poland or Russia.
Deporting people will not simply be a matter of bundling them on to the nearest boat, it will be a matter of putting them on an aeroplane. There are no direct flights to Nigeria from this country and there is only one weekly flight to Romania. The Minister for Justice, Equality and Law Reform has stated that, under our corpus of law, a large proportion of the 12,000 asylum seekers and refugees will not qualify to remain here. Therefore, a large number of planes will be required to transport them elsewhere. Unless the Minister intends to charter those planes, people will be placed in detention for protracted periods. I am alerting the House to that because I believe such behaviour will be resisted by the Irish people.
(Dublin West): Or they will protest to the Minister.
Amendment put.
Tá
|
Ahern, Michael.Ahern, Noel.Andrews, David.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cowen, Brian.Daly, Brendan.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Gildea, Thomas. |
Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.O'Dea, Willie.O'Donnell, Liz.O'Flynn, Noel.O'Keeffe, Batt.O'Kennedy, Michael. Tá–continued |
Roche, Dick.Ryan, Eoin.Smith, Michael.Treacy, Noel.Wade, Eddie. |
Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V. |
Níl
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Barrett, Seán.Belton, Louis.Boylan, Andrew.Bradford, Paul.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Crawford, Seymour.Currie, Austin.D'Arcy, Michael.Deenihan, Jimmy.Dukes, Alan.Durkan, Bernard.Enright, Thomas.Farrelly, John.Finucane, Michael.Flanagan, Charles.Gilmore, Éamon.Gormley, John.Hayes, Brian.Higgins, Jim.Higgins, Joe. |
Howlin, Brendan.Kenny, Enda.McCormack, Pádraic.McDowell, Derek.McGinley, Dinny.McGrath, Paul.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.O'Keeffe, Jim.O'Shea, Brian.Owen, Nora.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Yates, Ivan. |
Tellers: Tá, Deputies S. Brennan and Roche; Níl, Deputies Barrett and Stagg.
Amendment declared carried.
Amendment reported.
On a procedural point, now that we have concluded on amendment No. 1, am I in order to table immediately an amendment to delete it on Report Stage?
Acting Chairman:
No. We are proceeding to amendment No. 2.
Will we deal with this issue again on Report Stage?
Acting Chairman:
No.
Therefore, is there no Report Stage—
Acting Chairman:
On amendment No. 1, but we are now proceeding to—
—on the recommitted amendments?
Acting Chairman:
No, on some of them. We have already discussed Amendment No. 22, and the Deputy is referring to amendments Nos. 22 and 25.
On the procedure, because it is unusual to recommit amendments to Committee Stage which were introduced in advance of Report Stage, does it mean Report Stage will not deal with those issues again? Am I at liberty to seek to amend on Report Stage issues which have been dealt with in the referral to Committee?
Acting Chairman:
The Deputy is not in regard to amendment No. 1. The other amendments only can be decided on.
There will be no further debate on them because we exhausted the debate on them, but will there be an opportunity to comment on them on Report Stage?
Acting Chairman:
No, there will not.
Is the debate on those matters finished now?
Acting Chairman:
Yes. It is just a matter of a division at a later stage—
Should a division be called?
Acting Chairman:
—if the Deputy so desires.
On a procedural point, this is a flawed way of dealing with the matter. We have sight of amendments—
Acting Chairman:
That is a long-standing practice.
It may be a long-standing practice—
Acting Chairman:
The Deputy could raise the matter at the Committee on Procedure and Privileges.
It is an established practice to enable a Government to introduce an amendment which is absolutely required at a very late stage. It should not be done to deal with legislation of this nature, and I think it is a shame.
Acting Chairman:
That matter has been noted. We will proceed to amendment No. 2. Amendment No. 4 in the name of Deputy Howlin is related. Therefore, amendments Nos. 2 and 4 may be discussed together.
(Mayo): I move amendment No. 2:
In page 3, line 11, after "non-national" to insert "other than a presumptive refugee".
This relates to the various definitions on interpretation in the section. Section 1 states that an illegal immigrant "means a non-national who enters or seeks to enter or has entered the State unlawfully" and my amendment seeks to introduce an internationally accepted term to that section. I seek to amend the Bill by inserting, after "non-national", the words "other than a presumptive refugee". In other words, an illegal immigrant would mean a non-national other than a presumptive refugee who enters or seeks to enter or has entered the State unlawfully.
The term "presumptive refugee" is an internationally accepted term and not one coined by me. It is a suggestion which has come from Amnesty International and it figures in the legislation of other countries. It is based on the fact that if a person makes an application here for asylum status, in other words, to be classified as a refugee, once he or she makes the application there are three possibilities. It can be accepted if it comes within the terms of the Geneva Convention, 1951, and domestic legislation which gives effect to that, it can be rejected on the basis that it is not properly founded and therefore does not come within the terms of the Geneva Convention or domestic legislation, or the Minister can decide on compassionate grounds to give a person permission to remain. We are seeking to amend the Bill so that the person will be a "presumptive refugee" until such time as that decision is made.
If a person applies here, not only should he or she be entitled to have his or her application duly heard and go through the different processes of the initial application – to have it vetted, to have it heard subsequently at appeal stage and to have a judicial review even though the Bill severely curtails the right to judicial review in terms of the time allowed for same – but according to the amendment the person should be classified as a "presumptive refugee" without in any way prejudicing the right of the Department to make its decision to either accept or reject the application. Once the person makes the application, he or she is entitled to have the application processed. In addition, the person is entitled to the protection of non-refoulement, that he or she cannot be sent back to the country from whence he or she came as long as there is even a possibility that the person might be subjected to torture in its various guises.
I, therefore, table the same amendment I tabled on Committee Stage. I ask the Minister of State, Deputy Mary Wallace, in the light of what Deputy Howlin unsuccessfully implored her to do regarding the previous amendments on Committee Stage, to use her discretion on this occasion and to show the same degree of tolerance, good sense and flexibility as she showed when she came in to bat for the Minister, Deputy O'Donoghue, on the Committee and Report Stages of the Immigration Bill, 1999.
I regard this as an extremely important issue and I hope the Minister of State, Deputy Mary Wallace, will reflect genuinely on what is intended here. This new section inserted by the Minister on Committee Stage makes it an offence for an individual to assist a person to do something which is lawful. I do not know of any precedent in law which says that someone who assists another to do something which is lawful can be guilty of an offence which carries a huge penalty of up to ten years in prison.
The section says a person who "organises or knowlingly facilitates the entry into the State of a person whom he or she knows, or has reasonable grounds to believe, to be an illegal immigrant or a person who intends to seek asylum shall be guilty of an offence". If one knowlingly helps a person into the State who intends to seek asylum one will be guilty of an offence. That is wrong, simpliciter. The amendment I propose would insert after “asylum” the words “otherwise than in a lawful and bona fide manner”. The object of the amendment is to ensure that if someone is a genuine asylum seeker and turns out to be a genuine refugee and is given that status, the people who assisted him into the State would not be guilty of an offence. It would be unprecedented to make it unlawful – with a serious criminal penalty – to assist someone in doing something which is itself lawful.
The Minister rejected this amendment on Committee Stage and that rejection casts doubt on the Bill as a whole if it is to be what it is stated to be – a mechanism to stop the trafficking in people and in human misery. The Minister's logic, such as it was, on Committee Stage was that the Bill would be abused if this amendment were allowed and could be circumvented by someone claiming to be an asylum seeker. Nobody would be caught because everyone would apply for asylum. The converse is also true. People who are genuine asylum seekers – and there are such people who are fleeing death or persecution – must be facilitated to enter the State. The inclusion of those words, "otherwise than in a lawful and bona fide manner" defines that clearly enough.
The Bill should have a defence. The person who assists someone into the State should have a defence if that person is granted refugee status or is a genuine asylum seeker. I know this is difficult and that the Minister is trying to frame a law that is not meaningless. If genuine asylum seekers are to be facilitated and assisted into the country, to which no one objects, provision must be made for that. This blanket provision which says that anybody who knowingly facilitates the entry into the State of somebody who intends to seek asylum should be guilty of an offence is too stark, broad and over-arching. We need some tempering of this measure to provide for the genuine person who is genuinely assisting a genuine asylum seeker. I need the reassurance of the Minister of State as to how that is to be achieved.
The purpose of the amendment is to provide that trafficking in asylum seekers does not come within the scope of the Bill. The matter was discussed extensively on Committee Stage and the Minister for Justice, Equality and Law Reform explained that he could not possibly accept these amendments because to do so would mean that criminal organised groups who traffic in asylum seekers to this country would commit no offence. These traffickers can make large profits by exploiting loopholes in our law and by exploiting the vulnerability of asylum seekers.
To accept these amendments would be explicitly to condone such behaviour and the whole purpose of the Bill, which is to criminalise the activities of such people, would be undermined. Because of the concerns raised on Second Stage that genuine assistance given to asylum seekers should not come within the scope of the Bill, the Minister brought forward an amendment which was agreed on Committee Stage and which ensures that it is broad enough to take in the activities of profiteers who traffic in human beings while at the same time qualifies the offence so that the activities of bona fide people who give assistance to non-nationals to come here do not come within the scope of the Bill.
The Minister's amendment on Committee Stage did what the Deputies are trying to do.
Can the Minister of State explain that?
Deputy Howlin's amendment tries to ensure that the activities of bona fide people who give assistance to non-nationals to come here do not come within the scope of the Bill. I think that is what the Deputy is trying to achieve.
The Bill, as amended, does not do that.
I presume we are agreed in what we are trying to achieve.
Oscar Schindler would get ten years in Mountjoy.
We all want to ensure that people who are profiteering from trafficking in human beings are covered by the Bill and that bona fide people who give assistance to non-nationals to come here do not come within its scope.
Subsection (2)(f2>a) on page 4 refers to "anything done by a person otherwise than for gain". As a result of the amendment which has now been made to the Bill, the offence is committed only where the entry into the State of the illegal immigrant or asylum seeker is facilitated for gain. In other words, the offence catches the profiteers only, which is what we are all trying to do. Those who act for humanitarian purposes or because of family links and so on do not commit an offence under the Bill.
Accepting the Deputies' amendments would make the Bill meaningless. Worse than that, it would mean that we condone the practice of trafficking in human beings which we do not want to do, which is a practice recognised internationally as a serious form of international organised crime and which we are being called on by a number of international bodies, including the European Union, to criminalise. The Deputies know this to be the case and I hope they will see that the amendment already made by the Minister does what they want to do. I hope they will understand why it would not be correct for me to accept their amendment.
I see the Minister of State's difficulty. I do not think our purposes are at odds. I recall the debate on Committee Stage and I am not sure that the simple exclusion of the words "otherwise than for gain" will meet the full requirement. I need to have this teased out further.
Does this mean that payment for transport can be called a gain? If there is any payment for expenses involved in travelling is the defence negatived? This is an important point. I can see the difficulty in framing a provision that catches those who traffic in human misery, as it has been described, and distinguishes them from those who facilitate genuine asylum seekers to escape persecution. We must spend some time trying to achieve that balance. I welcome the fact that the Minister of State accepts the notion that profiteers should be caught and that there should not be an exemption for them. From that perspective I am well disposed to the argument against the amendments and, while I am convinced that those who traffic should be caught, I would be happier if those who facilitate genuine asylum seekers were not. Amplifying the exact interpretation of "gain" in this circumstance might allay my fears in that regard.
(Mayo): I support what Deputy Howlin said. It is very important. We must include the positive as well as the negative. We must ensure that what we enact is set down in clear terminology. We welcome the Minister of State's amendment because it has clarified to a certain degree and to our satisfaction the intention behind the legislation. However, it is also important that, at all stages in the Bill, anything which adds further clarity should be included. Including “otherwise than in a lawful and bona fide manner” copperfastens the aim we are all supposed to be trying to achieve of allowing people do certain things in certain circumstances on the strict basis of the humanitarian considerations involved.
Will the Minister of State accept the definition which Amnesty International has sought to have included or does she see it as nullifying or negating the Bill? Given that Amnesty International is pushing it so strongly, why can it not be accepted as the spirit within which a person comes to this country? They come on the basis that they have the right to asylum until such time as a final determination is made and they have been over the fences and through the hoops. I do not see why such an internationally accepted definition cannot be accepted without interfering with the general thrust of the Bill.
Two different points have been made. I will deal with the point raised by Deputy Howlin first. I refer him to section 2(1) which states:
A person who organises or knowingly facilitates the entry into the State of a person whom he or she knows or has reasonable cause to believe to be an illegal immigrant
That is the type of person—
It also states: "or a person who intends to seek asylum".
This concerns a person who knowingly facilitates the entry into the State—
Of someone who intends to seek asylum, and it finishes by stating that they shall be guilty of an offence.
Yes, but they are doing it for gain. The offence requires the intention and the knowledge. Merely taking payment for a ticket, an airline ticket, for example, does not constitute an offence. What is required is, first, an intention and, second, a profit.
It does not allay my fears.
Giving a person a lift from France—
If one knew a group was being persecuted in a third country and one organised to help them leave and made a collection because one did not have the wherewithal to pay for their flights, would that be considered to be for gain?
No. I could contribute to a person's flight to the far side of the world but I would not make a monetary gain by sending him there. Therefore, my contribution to his flight is obviously not for gain. What is at issue is the person who would gain from the person's transportation. The provisions should be read together. I hope the Deputy accepts that we have checked this thoroughly. If the issue of gain is not included, it offers a loophole for people organising trafficking. That is why the profiteering aspect must be included and why the amendment on Committee Stage distinguished between those who profit and those who are bona fide people giving assistance. Such people do not give assistance to a non-national for gain.
The point raised by Deputy Jim Higgins is different. He is approaching this from the point of view of asylum seekers and their rights. I assure him that, while the Bill criminalises the activities of traffickers, including traffickers in asylum seekers, such criminalisation does not affect the rights of the individual asylum seeker. As far as the asylum seeker is concerned, the position concerning his or her admission to the State and the processing of his or her application remains unchanged. He or she will continue to be dealt with in accordance with all the procedures and rights appropriate under existing arrangements or under the Refugee Act when it is in operation. What comes within the scope of this Bill is the activity of the trafficker.
(Mayo): My problem is with the use of the word “illegal”. An illegal immigrant is defined as “a non-national who enters or seeks to enter or has entered the State unlawfully”. We are jumping the gun and making a presumption. We are presupposing that someone is an illegal immigrant in the absence of a determination being made. People must be allowed apply for asylum and have their applications processed and appeals heard with possible redress to the courts before the word “illegal” can be valid terminology. One is not an illegal immigrant until one is found to be so. A rash presumption is being made in the Bill and I do not see why the door could not be left open so that a person would not be an illegal immigrant until such time as the asylum process has been undergone. That is why I wanted to include by means of my amendment that an illegal immigrant would mean a non-national, other than a presumptive refugee, who enters, seeks to enter or has entered the country unlawfully. Otherwise, it is jumping the gun and making a rash assumption. I do not understand why a suggestion from an internationally recognised authority on these matters and which monitors best practice in other countries cannot be accepted as part of the legislation. I will not push the matter. If the Minister of State believes she cannot accept it, so be it.
Amendment, by leave, withdrawn.
(Mayo): I move amendment No. 3:
In page 3, line 28, after "facilitates" to insert "other than for humanitarian reasons".
We seek to do much the same as Deputy Howlin does in amendment No. 4. Section 2(1) states:
A person who organises or knowingly facilitates the entry into the State of a person whom he or she knows or has reasonable cause to believe to be an illegal immigrant or a person who intends to seek asylum shall be guilty of an offence and shall be liable—
A range of penalties is then set out. Deputy Howlin seeks to insert "otherwise than in a lawful and bona fide manner". I accept that. It is an excellent suggestion and I do not understand why it cannot be accepted for the sake of clarity. I seek to insert "other than for humanitarian reasons" in the first line of the subsection. I accept that, subsequently in the Bill, an amendment was inserted on Committee Stage by the Minister. However, I do not understand why, for the sake of certainty and maximum clarity, the amendments cannot be accepted. Deputy Howlin and myself seek to achieve that additional clarity.
As we said previously on Committee Stage, thankfully in organisations there are individuals who are very unselfish in their motives. They have at all times sought to put the welfare of others ahead of their own. There are, for example, as we cited before, the Oskar Schindlers, the people who took considerable risks in Nazi dominated countries to try to secrete people in different guises and shapes and to try to siphon them out from Nazi dominated countries to safety. The people who did so at considerable risk to life and limb would have suffered the ultimate fate if they had been caught.
I cannot see, therefore, why a rather simple but clear definition cannot be inserted here which proposes to accept the bona fides of the person, and the reason he or she decided to assist somebody. We are discussing motives of the highest order, which are strictly humanitarian, with no commercial consideration and which entail considerable risks for the people involved. I cannot see why it would not be acceptable to the Minister and her advisers to consider some simple insertion such as a person who organises or knowingly facilitates "other than for humanitarian reasons". It could not be simpler. In other words, we should accept reasons that are strictly bona fide in assisting the people to leave the jurisdiction to escape torture or possible death and where there is no monetary gain involved.
On Second Stage concerns were expressed that the Bill could make criminal offences the activities of the Oskar Schindlers of this world. To ensure this would not happen, a requirement has been inserted into the Bill and the Deputies will agree that it has been improved by the provision that the assistance only becomes criminal if it is given for gain. Deputies will see that this approach sets the focus of the Bill firmly on the profit making traffickers and ensures beyond any doubt that non-profit making activity is excluded. The purpose of amendment No. 3 from Deputy Higgins is to provide that organising or facilitating the entry into the State of an illegal immigrant or asylum seeker for humanitarian reasons would not be regarded as trafficking. Assistance given for genuine humanitarian reasons is not for gain and therefore, the Government's amendment on Committee Stage ensures that such assistance is not considered to be an offence. I hope the Deputy accepts that.
Does the Deputy want to wrap up or speak for another few minutes?
(Mayo): I have made my case. I am pressing the amendment.
Amendment put and declared lost.
Amendment No. 4 not moved.
Acting Chairman:
Amendment No. 5, in the name of Deputy Higgins, arises out of Committee proceedings. Amendments Nos. 5 and 6 may be discussed together by agreement.
(Mayo): I move amendment No. 5:
In page 3, line 34, after "both" to insert "or to 100 days community service".
Amendments Nos. 5 and 6 are related. Amendment No. 6 is an alternative and looks at the ten year imprisonment proposed for breaches of this section and seeks to reduce it to five years. We had some debate on Committee Stage concerning this. When one looks at the list of offences punishable by ten years, the most recent one called into prominence is of soliciting to murder, on which a case was determined yesterday. The penalty for soliciting to murder is ten years. It is regarded as an extremely serious offence. In the terms of this Act, trafficking is a serious offence but five years imprisonment is also a very serious penalty and it is more appropriate than the ten years envisaged in the Minister of State's proposal. I hope she has had time to reflect on the case made on Committee Stage.
On community service, the Criminal Justice (Community Service) Act, 1983, provides a power to the courts to make community service orders relating to convicted persons and accordingly, it would already be open to the court to apply that power to a person convicted of an offence under this Act. Therefore, I reject the amendment on community service.
With regard to reducing the maximum term of imprisonment, which a court will impose follow ing a conviction on indictment, from ten years to five years, the purpose of the Bill is to deal with those who traffick in human beings for profit. Such activity is not only of concern in this country but the link between traffickers and organised crime has been recognised at UN level and work is now progressing on the negotiation of protocols to the Draft UN Convention on Organised Crime which deal with the smuggling and trafficking in human beings.
As the Minister, Deputy O'Donoghue, previously pointed out, the Heads of State of government of the European Union at the European Council meeting in Tampere, Finland, in October last considered the problem of trafficking in human beings and stated its determination to tackle illegal immigration at its source, especially by combating those who engage in trafficking and economic exploitation of migrants. They urged the adopting of legislation providing for severe sanctions against this serious crime. On the basis of a proposal by the Commission, it invited the Council of Ministers to adopt legislation to this end by the end of this year. The European Council furthermore urged member states, together with Europol, to direct their efforts towards detecting and dismantling the criminal networks involved.
The effect of the Deputies' amendments will be to reduce the maximum term of imprisonment which a court may impose, following conviction on indictment, from ten years to five years. Such a reduced maximum sentence would be insufficient to deal with the traffickers who may be part of an international organised criminal group and would not be in keeping with the international effort to detect and dismantle the criminal networks involved in trafficking human beings.
For this legislation to be effective against such groups, we must provide for the possibility of tough penalties. The ten year maximum sentence which the court can impose is not mandatory. It would be open to the judge to impose a lesser sentence where the circumstances of the case so warrant. On the other hand, accepting the amendments would mean that, faced with the most exploitative and organised trafficker in human misery, the judge would be restricted to imposing a maximum five year sentence. I am sure the Deputies would not wish to impose such a restriction on our courts and I ask them to withdraw this amendment.
The Minister of State is wrong. First, each trafficking offence is an offence. If one is talking about criminal gangs trafficking in multiples of people, each trafficking is an offence and each could bring a five year penalty. There could be very severe penalties of five, ten, 15, 20, 25 and multiples of five years for people who engage in serious trafficking because to traffick in an individual is an offence. If criminal gangs are involved, there can be huge penalties available to the courts. If an individual is involved, should the House signal that to facilitate the entry of a single non-national into this State, that individual should have exactly the equivalence in criminal sanction as soliciting to murder that person? That is the case being made by the Minister. Is that her belief? Does she want this House to enact the same penalty for bringing an individual into the State through the port of Rosslare for gain, a non-national who is an asylum seeker? The Minister of State regards that as equivalent to soliciting to murder her or him in the penal sanction that she demands of this House. That is not an equivalence which is fair or just. There is a real sanction available to traffickers who undoubtedly exist and should be subject to the full sanction of the law and the multiple of penalties available.
I am not impressed by the Minister's ability to break any criminal gangs since his report to the European Council last week indicated that there are already 13 criminal gangs in operation in this State. He has not exactly been a "gang buster" to date. Even this measure will not make a "gang buster" out of him. I would be much happier if he devoted his energies to breaking the gangs wreaking havoc on our streets and killing our citizens with infected heroin rather than seeking to put so much effort into this measure.
We are not discussing what the maximum sentence for incitement to murder should be, although the Deputy is making an eloquent case for increasing that sentence. With regard to the legislation—
Maybe we should bring in hanging.
—before us, we are not determining the sanction on a person for bringing in one or 20 individuals. All of these issues are dealt with in the court. We are simply applying what a maximum term of imprisonment would be, but I stress that we are not saying that is a mandatory maximum term.
The courts apply the law; we make the law.
In this legislation, we are not saying mandatory.
No, we are signalling the severity of the offence as we determine it in the Legislature.
Absolutely. If the Deputy believes the sentence for incitement to murder should be increased in other legislation, that is fine. It would send the wrong message internationally if we said it was not that serious and that we should reduce the penalty.
Five years is very serious.
It is important we state in the legislation that the courts can decide a period of three to six years or up to ten years but that it is for the courts to determine how serious the offence is depending on the evidence.
(Mayo): I did not table amendment No. 5 for any vexatious reason or to frustrate the Minister of State or her officials. I did so to bring to the attention of judges something which is generally overlooked. The Minister states that the option is there to impose a community service order; we know that. If one looks at the Roscommon Herald, the Meath Chronicle or The Western People any week, one will find it is not being used. One finds the occasional enlightened judge who will use a community service order in certain situations.
This Bill is typical. On summary conviction, there is a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both. That is it. Generally speaking, one will find that under the terms of this, one or other will be imposed. Each Bill we have passed and will pass will have a custodial sentence or a monetary sentence or both. There will not be any reference to community service orders.
All one has to do is look at the current prison population. There are about 10,800 people in prison. One quarter of those who will pass through the prison system and who will be ferried from Mayo, Roscommon, outer Dublin or Wexford to prisons around the country will be detained because of the non-payment of fines or civil debts and because they did not comply with the fine of £1,500, a financial penalty. That is the reason they will be in jail. We will have all the attendant costs involved. They will be collected in a patrol car, a hackney car or a taxi by three gardaí on overtime and will be put in jail but they will be out within a week wasting prison time, prison space, Garda time and, generally, the taxpayers' money. In most cases, these people could usefully serve out their sentence in the community doing positive work, contributing to the community and, at the same time, repaying their debt to society.
I see no valid reason that we cannot stitch into every routine Bill, which becomes an Act of Parliament, a community service option or alternative. We need not specify the number of community service days or hours but we should include community service as an option. The squander mania of taxpayer money, Garda time and prison time by locking up people who should not be in jail in the first place is scandalous. The Government does not intend to do anything about it. We have two or three Bills languishing on the list of promised legislation. For example, we have the attachment of earnings Bill which has been there since 1997 and is no closer to publication today than it was in 1997 when the Minister drafted his legislative programme.
I do not wish to interrupt the Deputy, but this is Report Stage and we are talking about the whole criminal justice system.
(Mayo): I am quite entitled to make—
The Deputy is talking about the whole criminal justice system on Report Stage of a particular amendment.
(Mayo): I can talk for two hours on it if I—
Acting Chairman:
Is the Minister of State talking about time or content?
I am talking about content.
(Mayo): Has the Minister read the amendment? The Minister is obviously filling in and is not au fait with what we are talking about.
The Deputy is talking about the whole criminal justice system and we are on Report Stage.
(Mayo): We are not; we are talking specifically about the appropriateness of penalties. Is that not right?
We are on Report Stage.
(Mayo): We are on Report Stage in relation to a particular amendment. If the Minister of State would have a little cop-on, courtesy and maybe a little manners, she might learn something. We are talking about a sensible regime in relation to the imposition of penalties.
The Minister of State and her senior supervisor, the Minister, Deputy O'Donoghue, wherever he is, propose two penalties – one is £1,500 and the other is 12 months or both. My amendment says that is daft in certain situations, that is, to have one or other or both. The Minister of State could quite usefully save a great deal of duress in terms of time, taxpayers' money and hassle by including a more sensible amendment introducing a community service. That is what I propose, that is, that the Minister of State would introduce a community service provision. I am not pushed in terms of determining the number of hours, although I suggested 100 hours because I was trying to achieve some kind of equivalence.
Most legislation which passes through this House should carry an alternative sanction other than a monetary one. To put a monetary penalty of £1,500 on somebody who gets £60 or £70 per week on the dole or who earns £200 or £250 per week driving a lorry is not realistic and we know he will end up in jail. Rather than imposing a jail sentence for what should be a non-custodial sentence, we should opt for a community service order, which the Minister of State said a judge could opt for in certain circumstances. For that reason I am adamant and I will do this in every Bill which comes from the Minister's Department from now on. We should stitch in this provision to remind errant judges that there is an option available other than a financial penalty. If the fin ancial penalty is defaulted upon, there will always be the option of another sanction – the community service order. That is the way to go, that is, to give somebody a pick or a shovel, a job to do or a plastic bag to pick up litter. Let them repay their debt to society in a more positive and productive way rather than simply throwing them into jail with all the costs involved.
Debate adjourned.